Symposium: Why Kisor is a case to watch

Posted Thu, January 31st, 2019 11:14 am by Brianne Gorod

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center.

There are lots of Supreme Court cases that don’t make big headlines. But that doesn’t mean they aren’t important. A case the court will hear later this term is a prime example. In Kisor v. Wilkie, the Supreme Court will consider whether to overrule its own long-standing precedents that hold that courts should defer to agencies’ reasonable interpretations of their own regulations. This case is important in its own right. But it’s also significant because it is part of a broader conservative attack on the administrative state, and the consequences of that attack, if successful, could be tremendous.

The idea that courts should defer to administrative agencies’ reasonable interpretations of their own regulations is hardly new. As far back as 1945 in Bowles v. Seminole Rock & Sand Co., the Supreme Court held that if the “meaning of [an administrative regulation] is in doubt,” “a court must necessarily look to the administrative construction of the regulation.” The “administrative interpretation,” the court went on to explain, “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” The court has repeatedly reaffirmed that principle in the years since, most famously in the case Auer v. Robbins, in which Justice Antonin Scalia wrote for a unanimous court that the secretary of labor’s interpretation of his own regulations is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

Yet despite the rich pedigree of this doctrine, it is now (and has been for some time) under attack, including by Supreme Court justices. Justice Clarence Thomas, for example, in a concurrence, stated that “Seminole Rock was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns.” In a different case, Chief Justice John Roberts, joined by Justice Samuel Alito, noted in a concurrence that “[t]he bar is now aware that there is some interest in reconsidering those cases.” Indeed, by the time he died, even Scalia had turned on the decision he authored, arguing in a separate opinion in a case that Auer deference violates “fundamental principles of separation of powers.”

These constitutional attacks on Auer miss the mark for many reasons. Nothing in the Constitution’s text, history or values prohibits courts from deferring to agencies’ interpretations of their own regulations. Indeed, as others have argued, the doctrine may well advance constitutional values, such as “due process, fair notice and rule of law norms,” by reducing the risk that agencies will “choose to issue their regulatory interpretations through ad hoc administrative adjudication,” and “constitutional supervisory structures,” by “support[ing] top-down oversight and control of agency personnel.”

But I want to focus here on how these attacks on Auer are part of a broader attack on the administrative state — and what the implications of those attacks, if successful, could be, for both the Supreme Court and the country. After all, as the court takes up Auer this term, two other major legal issues — both involving long-standing Supreme Court precedents — may not be far behind. First, in a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council, the Supreme Court held that when a statute is ambiguous, courts must defer to a reasonable interpretation of that statute by the agency charged with administering it. Recognizing the expertise and flexibility that administrative agencies can bring to policymaking, Congress has often delegated authority to expert agencies to determine how best to implement the laws it passes.

Second, in a 1935 Supreme Court case called Humphrey’s Executor v. United States, the Supreme Court held that Congress may shield the heads of regulatory agencies from removal at will, and the court has reaffirmed that decision many times since then. Consistent with this precedent, Congress has repeatedly chosen to do so, recognizing that in some cases agencies will be able to function more effectively if they have some degree of independence from the president. Recently, for example, Congress decided to make the head of the Consumer Financial Protection Bureau removable only for cause. Congress concluded that this structure would enable the new agency to best do its job of protecting Americans from harmful practices of the financial services industry and preventing another financial crisis like the one that shook the nation in 2008.

Yet both of these doctrines — just like Auer — are now under attack, including by the two newest members of the Supreme Court. Before joining the court, then-Judge Neil Gorsuch made no secret of his disdain for Chevron. In one opinion, he wrote that Chevron has permitted “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Indeed, when Gorsuch was nominated, the business community rejoiced, citing as one reason his “willingness to challenge the Chevron doctrine.” And before joining the court, then-Judge Brett Kavanaugh too made his contempt for Chevron clear, calling it “an atextual invention by courts” that is “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” And he wrote an opinion holding that the leadership structure of the CFPB is unconstitutional. When the full U.S. Court of Appeals for the District of Columbia Circuit subsequently rejected that conclusion, Kavanaugh wrote a dissent, calling into question Humphrey’s Executor and thus the constitutionality of all independent agencies.

This multi-faceted attack on the administrative state is deeply troubling for a number of reasons. First, it is at odds with constitutional text, history and values. While each of these doctrines raises different issues, the assaults on them seem motivated by a common feature: a belief that the modern administrative state would somehow be anathema to the Constitution’s Framers. As Roberts once wrote in a dissent, “[t]he Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. … ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’”

Yet when the Framers set up our structure of government, they were well aware that the new president would not be able to “take Care that the Laws be faithfully executed” without the assistance of subordinate Executive Branch officials (“Officers of the United States”) and “Departments” to assist him in his responsibilities. But they left unspecified what those departments would look like or who those officers would be, leaving Congress with great discretion to determine how best to structure the federal government. And Congress has long recognized that administrative agencies should play a critical role in the implementation of federal law. As Professor Jerry Mashaw has written, “[f]rom the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive powers, created systems of administrative adjudication, and provided for judicial review of administrative action.” This history is at odds with contemporary notions that the administrative state — and concomitantly any Supreme Court opinions that empower the administrative state — should be viewed with great skepticism and hostility.

Second, if these attacks on the administrative state were to prove successful, the consequences for the American people could be significant. After all, doctrines of administrative deference have long played an important role in the federal government’s ability to regulate big businesses and protect consumers, the environment, workers and more. And independent agencies serve a critical role in regulating businesses and marketplaces because they are able to enact reasonable business regulations without political interference or the undue influence of corporate interests. In sum, although people may not pay much attention to Supreme Court cases about agency deference or independence, the decisions the Supreme Court makes in those cases could affect literally every American.

Third, and finally, how the Supreme Court handles these attacks on the administrative state could also have real consequences for the institutional legitimacy of the court. Whether it’s Auer, Chevron or Humphrey’s Executor, these are long-standing precedents of the court. Although it is sometimes appropriate for the court to overrule its own precedents, it must have good reasons, as the court itself has noted time and time again. Earlier this term, Kavanaugh put it like this: “[W]hen are we going to upset that stability, when are we going to depart from the humility of respecting precedent and overrule [a doctrine]?” If it appears that the court is overruling precedent simply because of the policy preferences of the justices, that will do real damage to the notion that the justices are not simply politicians in robes.

People may not be paying a lot of attention to Kisor, but they should be. It’s an incredibly important case in its own right — and because of the larger attack on the administrative state of which it’s a part.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

Download our App in the Apple Store

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.